- (1.) This appeal by special leave is directed against the order of the Division Bench of the Calcutta High Court dated 11/8/1998.
(2.) In the view that we propose to take, we do not consider it necessary to ad to the detailed facts of the case but shall refer only to certain relevant facts which are as follows : Respondent no. 1 - Smt. Rama Mukherjee had been making applications for grant of license to vend Foreign Liquor in the area of Habra Station, P. S. Habra. According to her, she had been making applications since 1972. Since the applications were not considered by the authorities in accordance with the prescribed procedure and no decision was taken on her applications, she filed a writ petition, being C. O. 11612 (W) of 1993. The writ petition came to be heard by Mrs. Ruma Pal, J. (as her Lordship then was). Without considering the merits of the case of respondent no. 1 in any manner whatsoever, the learned Judge after taking note of the petition, to which no counter affidavit had been filed, directed the appellants (the State Authorities) to consider the case of respondent no. 1 for issuance of temporary and/or regular license for settlement of Foreign Liquor (F. L. ) 'off shop within the area of Habra Station. The appellants were directed to consider the case within a period of 8 weeks and in the event a temporary license was granted, the same was directed to be renewed from time to time till annual settlement was made. A further direction was issued to the appellants to dispose of the matter after giving her an opportunity of being heard and producing all such documents as she may like in support of her case. These directions were issued by learned single Judge of the High Court on 16/9/1993. Pursuant to the order of the learned single Judge, respondent no. 1 as well as respondent no. 2 were granted hearing. An application was made in November, 1993 before the Additional District Magistrate. That application came to be decided by the Additional District Magistrate on 30/11/1993. In that decision, inter alia, the Additional District Magistrate held that the site for which license was being requested for had not been proposed for settlement during that financial year. The order of the Additional District Magistrate was put in issue by respondent nos. 1 and 2 through Writ Petition C. O. No. 448 (W) of 1994. That writ petition was decided on 6/4/1994 in favour of the respondents. A perusal of the order of the learned single Judge - Sh. Paritosh Kumar Mukherjee, J. shows that it was based on a wrongful factual matrix inasmuch as it was assumed that the site at Municipal Super Market within the vicinity of Habra Police Station for which the license was sought for by the respondents was an 'approved' site. There was no basis for this factual statement. Based on this wrong factual matrix, direction was given by the learned single Judge for grant of a temporary licence in respect of Indian Made Foreign Liquor (IMFL) 'off shop at Municipal Market Habra in the District of North 24 Parganas in favour of the respondents, within a period of six weeks from the date of communication of the order. The authorities were further directed to renew the same from time to time until regular and/or annual settlement was made. The judgment in C. O. 448/94 dated 6/4/1994 was impugned before the Division Bench by the State. The appeal was admitted for consideration and in the meantime the Division Bench directed stay of the order of the learned single Judge to the extent it had directed grant of temporary or regular license in favour of respondents. The authorities were, however, directed to consider the grant of temporary IMFL'off' shop license to respondent no. 1 only within the area of Habra within a period of 15 days from the date of the order. The Additional District Magistrate thereafter, 1 pursuant to the directions of the Division ' Bench, considered the prayer of respondent no. 1 and 1/12/1994 rejected the same. An appeal, filed by respondent no. 1 before the Excise Commissioner, met the same fate on 9/2/1995. Thereafter, a revision was filed by the respondent against the order of the Excise Commissioner before the Principal Secretary, Excise Department. That revision was rejected on 4/4/1996.
(3.) The order of rejection of the revision was put in issue through another Writ Petition C. O. No. 17482 (W) of 1996. Sh. V. K. Gupta, J. disposed of the writ petition by directing the authorities 'to grant' the licence within four weeks. The learned single Judge based the order on a 'concession' made by learned Advocate appearing for the State. We, however, find that the concession made by the learned Advocate was only to the effect that the State would have 'no objection in considering the petitioner's request for grant of the aforesaid temporary licence and to renew the same in her favour. ' By no stretch of imagination could this concession be construed as a concession on behalf of the State to 'grant the licence'. The appellants put in issue the order of the learned single Judge dated 30/4/1997 in an appeal before the Division Bench. Before the Division Bench, a plea was raised that the concession made by the Counsel was unauthorised and that in fact concession had not been made in the terms in which the learned Judge had understood it. The Division Bench declined to entertain the plea and refusing to interfere with the order of the learned single Judge dated 30/4/1997 gave liberty to the appellant to file a review petition. We are informed that the review petition was filed and the same is still pending. While the matters stood thus, the main appeal against the order of the learned single Judge dated 6/4/1994 in Writ Petition C. O. No. 448 (W) of 1994 came up for hearing. The Division Bench, in the operative part of the order, directed as follows : "The appellants are directed to take steps in accordance with law for considering of granting regular settlement of annual licence in respect of I. M. F. L. 'off shop at the declared site (area) at Habra within the vicinity of Habra P. S. in the District of North 24 Parganas, preferably within six months from the date of communication of this order. Pending settlement of such annual and/ or regular licence in I. M. F. L. 'off shop site at Habra, the authorities concerned are directed to grant temporary licence in respect of I. M. F. L. "off shop at Habra in the District of North 24 Parganas in favour of the writ petitioner/respondent no. 1 within a period of 30 days from the date of communication of this order and renew the same from time to time, till annual and/or regular settlement is made. The writ petitioner will be entitled to assert her claim for issuance of annual and/or regular licence before licensing authorities at the time of grant of such settlement and the said authorities are directed to consider the said prayer of the writ petitioner on merits in accordance with law. ";